Saturday, December 17, 2005

President Bush claims that he has the authority under law and under the constitution to order wire taps on executive authority alone. That is he claims that he does not need judicial approval in the form of warrants to listen in on the phone calls, emails etc of U.S. citizens residing in the United States. He bases these claims on three things: his Constitutional Authority of as Commander in Chief, the Joint Resolution that authorized use of force against Afghanistan after 9/11 and the Patriot Act. The first two are stretches of reason that have already been ruled on at least in part by the Courts (they ruled against Bush I believe - LTG can you verify?) But what does the Patriot act actually say? I'll leave the deeper analysis to our friendly neighborhood Law Talking Guy. Here are the relevant passages that I could find in my amateur survey of the law:

From the Patriot Act:Title II, Section 215 Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations:

`(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

`(2) An investigation conducted under this section shall--

`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

`(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

`(b) Each application under this section--

`(1) shall be made to--

`(A) a judge of the court established by section 103(a); or

`(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

`(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

NOTE: This allows APPLICATION for such authority. Applications are to be made to judicial authority (see paragraph (b)(1)). If LTG corrects me I'll not argue but it seems to me that this does not enable direct executive authority to authorize such actions. It only allows the executive to apply.

As for Congressional Oversight. The President claims to have kept Congress informed. However, Democratic leaders are saying they were not informed. Only Bill Frist was informed. Here is what the law says about that:

Title II, Section 502 Congressional Oversight:

`(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

`(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--

`(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and

`(2) the total number of such orders either granted, modified, or denied.'.

What do our legal experts think of all this? Have I accurately identified the parts of the Patriot Act upon which the White House rests its argument? Please enlighten us oh great and wise Law Talking Guy!

3 comments:

Anonymous
said...

The right wing legal team's arguments from the WH are old and hackneyed. They claim that in time of war, there are no restraints on the commander in chief on the battlefield. We are at war, they claim, and the battlefield is the whole world, including the USA. Thus, there can be no restraints on the executive. With that background, when Congress authorized the president to take all necessary steps, it meant to put him beyond any other restrictions. Rehnquist would parrot "inter arma silent leges" - in times of war, the law is silent.

Of course, this is all without any legal basis. The constitution can never be abrogated. The presidency derives its power from the constitution, and through it from the people. The principles Rehnquist refers to are venerable - that ocmmanders on the battlefield obey the rules of war, not the jus civilis. When Caesar led his soldier across the Rubicon to Rome, making it the battlefield, this did not make it a legitimate exercise of power. Where there is actual combat by the military - in parts of Iraq and Afghanistan, it is governed by the rules of war. Bush would define the civil world , and with it all civil liberties, out of existence.

Of course, even beyond the realm of jus civilis, jus cogens remains: the law from which principle may ever derogate. These are ancient principles. Rehnquist pointedly quotes "inter arma silent leges" - but lex is not jus. Leges are rules - the Law Itself, jus, is something a deeper principle. The Rule of Law is rooted in more than two and a half millennia of jurisprudence that posited that no person or institution was ever a law until itself.

Bush claims that in times of war, there is no law of any kind but that Right Must Win. Law comes from the barrel of a gun. That is the lie of every tyrant.